United States of America v. Gary Delino Holmes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-6725

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY DELINO HOLMES,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, Chief District Judge. (4:06-cr-01319-RBH-1)

Submitted: April 30, 2020 Decided: May 26, 2020

Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Casey P. Riddle, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Derek Alan Shoemake,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:
Gary Delino Holmes appeals the district court’s orders denying his motion to reduce
his sentence under the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, 132
Stat. 5194, and denying his motion for reconsideration. Holmes pled guilty in 2007 to
conspiracy to possess with intent to distribute in 5 grams or more cocaine base, 500 grams
or more of cocaine, and 100 grams or more of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 846 (2018), and using and carrying a firearm during and in
relation to, and in furtherance of, a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2018). The district court determined that Holmes qualified as a career
offender and sentenced him to 232 months’ imprisonment on the controlled substance
offense and a consecutive 60-month sentence on the § 924(c) count.
1

In 2019, Holmes moved for a reduction of sentence pursuant to the First Step Act,
requesting that the court impose a reduced sentence on his conspiracy conviction. The
district court denied the motion, concluding that Holmes’ conspiracy charge was not a
“covered offense” within the meaning of the First Step Act because Holmes was convicted
of conspiring to distribute crack cocaine, powder cocaine, and heroin, and the statutory
penalties for powder cocaine and heroin offenses were unchanged.
Section 404(b) of the First Step Act provides that “[a] court that imposed a sentence
for a covered offense may, on motion of the defendant . . . impose a reduced sentence as if

1
The district court subsequently reduced Holmes’ sentence to an aggregate of 220
months: 160 months on the conspiracy conviction and a consecutive 60 months on the
firearm conviction.

3

sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372)
were in effect at the time the covered offense was committed.” § 404(b). “Section 404(a)
defines a ‘covered offense’ as a violation of a federal criminal statute, the statutory
penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010,
that was committed before August 3, 2010.” United States v. Gravatt, 953 F.3d 258, 260
(4th Cir. 2020).
When the district court considered Holmes’ First Step Act motion, it did not have
the benefit of our recent decision in Gravatt, in which we held that a defendant—like
Holmes—who “was charged conjunctively with conspiring to distribute both powder
cocaine and crack cocaine” was convicted of a covered offense under § 404(a). 953 F.3d
at 264. Because Holmes’ sentence involved a covered offense under § 404(a), we vacate
the district court’s order and remand to allow the district court to address Holmes’ motion
on the merits.
2
See Gravatt, 953 F.3d at 264. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
VACATED AND REMANDED

2
The district court recognized that it had the authority to reduce Holmes’ sentence
if it determined that he was convicted of a “covered offense” and stated that it would
decline to do so as a matter of discretion. We take no position on the court’s decision at
this juncture. The court may, however, choose to revisit that decision.